Fair abuse

The wind done gone with the wind: a publishing controversy.

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by Alice Randall (Houghton Mifflin; publication on hold)

WHAT RIGHT does anyone have to criticize Gone With the Wind by drawing attention to its racism? If such criticism comes in the form of a book that appropriates elements of Margaret Mitchell's 1936 novel in order to tell the story from a ex-slave's perspective, that critic has no right at all, according to Atlanta federal Judge Charles A. Pannell Jr. Nearly three weeks ago, Pannell slapped an injunction on Houghton Mifflin, forbidding it to publish The Wind Done Gone by Alice Randall, which Randall and the publisher refer to as a parody and the judge brands as "unabated piracy." While the publisher appealed and various artists filed briefs to back the author's First Amendment rights, wayward review copies fetched bids upwards of $485 on eBay, which yielded to demands by the Mitchell estate and suspended trading on the hot commodity.

Anyone familiar with the Supreme Court's unanimous decision supporting 2 Live Crew's right to parody Roy Orbison's "Oh Pretty Woman" might wonder how the Mitchell side could hope to succeed. In that 1994 case, the Court clearly explained the application of fair use provisions in federal copyright law. Although 2 Live Crew made money on their version, the Court ruled that the nature of their use was primarily satirical, that their parody did not overly resemble the original song or take too much from the original, and that their parody didn't hurt the market for the original. Not only does the Randall book take less from the Mitchell original than 2 Live Crew took from Orbison, the main reason Randall gives for writing her book is far more important than poking fun at banal lyrics. Citing her own mixed-race background, Randall makes a strong case for her right to examine Mitchell's fantasyland—not in some musty treatise in the op-ed graveyard of your daily newspaper, but in an imaginative, funny, and provocative attack on the battlefield of fiction.

Although Mitchell died in 1949, distant relatives have kept her copyright alive and have maintained vigilant control over the GWTW franchise. It is, after all, the best-selling novel of all time. Sequels, such as the 1991 Scarlett by Alexandra Ripley, must be authorized by the estate, and authorized authors must obey certain rules: no homosexual sex, no interracial sex, no Scarlett death. During her lifetime, Mitchell was no stranger to litigation: She sued Billy Rose for doing a GWTW satirical theater sketch and was herself the target of an unsuccessful $6.5 billion plagiarism lawsuit.

So, when a review copy of The Wind Done Gone blew my way, I eagerly mustered the authors' union troops behind generals Stoppard, Markson, Rhys, Sorrentino, Acker, and Shakespeare, and set out to burn Atlanta in the name of intellectual sovereignty, creative freedom, and literary allusion.

Then I read the press kit: "Alice Randall—beautiful, brilliant, Harvard-educated . . . ," the cover letter introduces an African-American woman who has written a hit country song and a TV movie. Say what? Is this a novelist or a novelty act? From the schmaltzy cover to the author interview at the end of the bound, uncorrected proof, this must be one of the most venal piggies ever to squeal "fair use" on the way to market. What's more, most explicit connections to the Mitchell book come not in the nickname-riddled text but in the material provided by the publisher. Not that the author, or anyone, should object to a publisher who would sell a few books, but the Mitchell estate lawyers aren't just whistling Dixie when they say the main nature of Randall's use is commercial. But then, by suppressing publication, the Mitchell camp guarantees Randall's commercial success if their holding action fails.

RANDALL'S BOOK should succeed, even if (or, perhaps, because) it defies notions of parody as much as it defies the genteel mythologies of the American South. In style, point of view, and structure, The Wind Done Gone is nothing like Gone With the Wind; and, while the masterfully accomplished Gone With the Wind is so derivative of the 19th-century novel as to forfeit any claim to literary originality, the haphazardly executed The Wind Done Gone may be an original sort of parody or, at least, an imaginative work of literary criticism. Randall creates Cynara, a mixed-race half sister of Other (allegedly, her name for Scarlett O'Hara), and methodically and hilariously breaks all of the Mitchell estate's rules as Cynara narrates her life story. The narrative begins at the end of the Civil War and jumps around frequently to disclose the various scandals behind the story that made this household a household name. Unlike in Mitchell's Georgia, where slaves (except Mammy) are babbling imbeciles who are either helplessly loyal or stupid as monkeys, Randall's bizarro world features wise and shrewd slaves who manipulate their dissolute masters and, to some extent, overcome the brutal circumstances of their lives.

Taught by her lover, R. (who always preferred her to Other), Cynara crashes the illiteracy barrier and writes this account, providing a flip-side view of Mitchell's hit book. Willfully repudiating the elegant grace that makes Gone With the Wind a terrific popular novel, The Wind Done Gone lurches from event to event in order, finally, to install its heroine in a feel-good future. As fantastic as Cynara's blasts from the past may seem, the jumbled form of her account eventually seems woefully realistic as she gropes to make sense not only of the indignities slaves have suffered, but also of the privileged position Mitchell's version of history has attained: She is urgent, thoughtful, and damned if she doesn't succeed.

But who gives a damn? A federal judge in Atlanta and a few rich copyright holders may be the only ones who think people won't buy authorized sequels of Mitchell's cash cow if Randall's book hits the shelves. If the upper courts agree, previous definitions of fair use will blow away. It will be an intellectual revolution, and the revolution will be authorized.